The Fair Work Legislation Amendment (Closing Loopholes No.2) 2023 Bill successfully passed through Parliament on February 8, 2024, and is on track to soon receive Royal Assent.
Regarding the “Right to Disconnect,” a recent addition to the Bill aims to modify the Fair Work Act, prohibiting employers from reaching out to employees beyond their designated work hours, unless such contact is deemed ‘reasonable’. The amendments also grant employees the right to decline monitoring, reading, or responding to work-related communication outside their regular work hours, except in cases where the refusal is considered ‘unreasonable’. Various factors, including the purpose of the contact, the method of communication, the level of disruption caused, compensation for additional work (including non-monetary benefits), the employee’s role and responsibilities, and personal circumstances (such as family or caregiving responsibilities), are to be taken into account when determining the reasonableness of a refusal.
The Fair Work Commission (FWC) will be entrusted with the authority to adjudicate applications for orders requiring employers to cease out-of-hours contact. Anticipating potential debates on defining ‘reasonable contact,’ the uncharted territory is expected to generate discussions.
Of note, the Bill, in its current form, introduces criminal penalties for employers failing to comply with the FWC’s right to disconnect orders. Despite the government’s attempt to have these criminal penalties removed in the Senate, the proposal was rejected due to its late introduction. The government, acknowledging that the inclusion of criminal penalties was unintended, has expressed its intention to legislate for their removal. This incident underscores the perception that the Bill may not have undergone thorough consideration before its introduction.
These amendments are slated to become effective six months after the Bill receives Royal Assent, which is imminent.
Where to from Here?
Recognising the challenges of being an employer in the present political context, we understand the confusion, stress, and difficulty that often accompany this role. The introduced reforms only serve to deepen the complexities of industrial relations, adding bureaucratic hurdles that are likely to impact both productivity and business costs.
Should you seek more information on how these changes might affect your business or require assistance in ensuring compliance with the new legislative landscape, please feel free to reach out to Apex HR.